The controversial “ban the box” legislation that significantly impacts the majority of Baltimore City employers will go into effect on August 13, 2014. The new law prohibits certain employers in the City of Baltimore from inquiring about a job applicant’s criminal history before extending a conditional offer of employment. This law, which is intended to remove barriers to employment for qualified workers with criminal records, critically hampers a Baltimore employer’s ability to fully assess prospective job candidates early in the hiring process.

Overview of the Law

Under this law, prior to making a conditional offer of employment, an employer may not:

conduct a criminal record check on the applicant,

require an applicant to disclose whether he or she has a criminal record or otherwise has been the subject of criminal accusations, or

make any inquiry about whether the applicant has a criminal record or otherwise has been the subject of criminal accusations.

Accordingly, job applications can no longer include a box for ex-offenders to check disclosing that they have a criminal record.

The law defines “conditional offer” as an offer that “is conditioned solely” on either the results of a subsequent criminal background check, or “some other contingency expressly communicated to the applicant at the time of the offer.” If, after a conditional offer is extended, an employer learns that the applicant has a criminal history that makes him or her unacceptable for the position, the employer may revoke the conditional offer. Employers should be wary of revoking conditional offers after learning about an applicant’s criminal history, however, because the EEOC has been highly critical of using criminal background checks in employment decisions and has suggested that such use may be discriminatory in certain situations.

As an example, assume an employer extends a conditional offer to an applicant as a receptionist. The position involves accepting credit card and cash payments, as well as having unsupervised access to customers’ belongings. After conducting a background check (which is permitted under the law since a conditional offer has already been extended), the employer learns that the applicant has a criminal conviction. According to the EEOC, before excluding the applicant for the position, the employer must establish that the exclusion is job related and consistent with business necessity. This requires assessing the nature and gravity of the offense; the time that has passed since the offense; and the nature of the job sought. The EEOC also expects the employer to give the applicant an opportunity to explain why he/she should not be excluded.

Employers Covered by the Law

This law impacts private employers that employ ten or more full-time equivalent employees in the City of Baltimore. Facilities servicing minors or vulnerable adults (defined as “an adult who lacks the physical or mental capacity to provide for his or her own daily needs”) are exempt from the legislation. Additionally, the law does not apply to an inquiry expressly required or authorized by other applicable law.

Penalties for Violating the Law

Violation of this law may result in criminal and/or civil penalties. Any person who violates the law is guilty of a misdemeanor and is subject to a fine not to exceed $500 and/or imprisonment not to exceed 90 days. Furthermore, any person who believes that he or she has been harmed by an alleged violation of the law may file a complaint with the Baltimore Community Relations Commission, and may be awarded (1) back pay for lost wages; (2) reinstatement; (3) compensatory damages, including compensation for humiliation, embarrassment, and emotional distress, and expenses incurred in seeking another job; and (4) reasonable attorneys’ fees.

Recommended Steps for Employers

Employers in Baltimore City should speak with their employment counsel to determine if this law applies to their Baltimore operations. If the law applies, employers may need to:

revise job applications to remove the criminal history “box” or other questions about criminal background,

revise hiring procedures to postpone inquiries about criminal history until after a conditional offer of employment has been made, and

train personnel involved in the hiring process to understand how the new law affects the job application and interview process.

Jaime Luse, a partner in the firm's employment and labor law group, defends employers against claims on diverse employment matters. If you would like further information, please contact Ms. Luse at jluse@tydingslaw.com.